Cho High Court Decision 2008Gu4040 (No. 24, 2009)

Measures to refuse to correct comprehensive real estate holding tax on forests preserved in its original form in a golf course are legitimate.

Comprehensive real estate holding tax itself is not unconstitutional, but it does not violate the principle of no taxation without law and the prohibition of comprehensive delegation, and it does not infringe on the equality principle and freedom of occupation selection under the Constitution.

209Guhap2049 Demanding revocation of revocation of revocation of rectification, such as comprehensive real estate holding tax

〇〇주식회사

〇〇세무서장

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's rejection of each of the comprehensive real estate holding taxes belonging to the year 2006 and the year 2007 against the plaintiff and the rejection of each of the comprehensive real estate holding taxes belonging to the plaintiff and the rejection of each of the comprehensive real estate holding taxes belonging to the year 2005 dated November 12, 2008 shall be revoked.

1. Details of the disposition;

가. 원고는 〇〇시 〇〇읍 〇〇리 67-2 일원에서 회원제 골프장인 '〇〇클럽' (이하 '이 사건 골프장'이라 한다)을 운영하는 회사이다.

B. In accordance with Article 11 of the Comprehensive Real Estate Tax Act and Article 182(1)1 and 2 of the former Local Tax Act (amended by Act No. 8864 of Feb. 29, 2008; hereinafter referred to as the “former Local Tax Act”), the Plaintiff reported and paid the comprehensive real estate holding tax and the special rural development tax, respectively, to the Defendant, by classifying the forest land to be preserved in its original form (the forest to be preserved in its original form, and the undeveloped land is also the forest to be preserved in its original form) within the instant golf course as a general aggregate subject to general aggregate taxation.

C. The Plaintiff filed a claim for correction of tax base and tax amount for comprehensive real estate holding tax paid and special rural development tax on July 29, 2008 and for special rural development tax on July 2006 and July 2007, and for correction of taxation standard and tax amount on comprehensive real estate holding tax for special rural development tax for the year 2005, and comprehensive real estate holding tax for special rural development tax for the year 2005, and special rural development tax for the Defendant on November 5, 2008, on the ground that it is unreasonable to classify the forest land preserved in the original form of this case as a general aggregate subject to general aggregate subject to general aggregate subject to taxation, but the Defendant made a disposition against the Plaintiff refusing to file each of the above correction request (hereinafter “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Eul evidence No. 1-1, 2, and 3's purport of whole pleadings

2. The gist of the Plaintiff’s assertion is as follows.

A. The assertion that the underlying law is unconstitutional

Article 11 of the Comprehensive Real Estate Tax Act, Article 182 (1) 1 and 2 of the former Local Tax Act, Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 20887 of Jun. 25, 2008) (hereinafter referred to as the "Enforcement Decree of this case") which is the basis of each disposition of this case is unconstitutional. Thus, each disposition of this case is unlawful.

(1) Claim on the unconstitutionality of comprehensive real estate holding tax itself

The Comprehensive Real Estate Holding Tax Act infringes on ① the essential contents of property rights, ② the objectivity and fairness of the evaluation as a taxation on unrealized gains, ③ the prohibition of double taxation is violated, ③ the local finance right is violated by incorporating taxable items to national taxes, ④ the discrimination between the person holding real estate and the person holding stocks or deposits, etc., and ② the limit of ‘distribution of income permitted by the Constitution' is violated, and Article 119(2) of the Constitution also violates the principle of equality.

(2) Violation of the principle of no taxation without law and prohibition of comprehensive delegation under Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182(1) of the former Local Tax Act

Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182 (1) of the former Local Tax Act provide that the scope of taxation subject to the Comprehensive Real Estate Holding Tax cannot be predicted and that the government remains a arbitrary legislative contribution. Therefore, this is contrary to the principle of no taxation without law and the principle of prohibition of comprehensive delegation.

(3) Claim for violation of the principle of equality under the Enforcement Decree of the instant case and infringement of the freedom of occupation selection

(A) Violation of the principle of equality

The enforcement decree of this case provides that the forest land preserved in the original form of a membership golf course shall be treated differently from the forest land preserved in the original form of a public golf course prescribed by special aggregate taxation without reasonable grounds, and (2) treat the forest land preserved in the original form of a golf course as the same as the "land for sports facilities where the nature of the golf course is different from those for non-business purposes" and the same as the "land for non-business purposes" is treated differently from the "a simple forest connected to a golf course," and thus, it is in violation

(B) Infringement of freedom of occupation selection

The heavy taxation on the forest land preserved in its original form of the golf course infringes on the freedom of choice of occupation by making it virtually difficult to open and operate the golf course due to the significant impact on the profit or loss of the golf course.

B. The assertion that the assessment of the tax base is unlawful

Since the decision of officially assessed individual land price on the forest land to preserve the original form of this case is unlawful, each disposition of this case based on the tax base calculated accordingly is unlawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination as to the assertion that the underlying law is unconstitutional

(1) Whether the essential content of the property right is infringed

In the case of the comprehensive real estate holding tax, Articles 35(3) and 122 of the Constitution provide the State with a wide legislative discretion on the right to land property and impose an obligation on all the people to endeavor to live a pleasant residential life through housing development policies, etc. In full view of the following, the Comprehensive Real Estate Holding Tax Act (hereinafter “Comprehensive Real Estate Holding Tax Act”) is aimed at enhancing tax equity on the possession of real estate by imposing comprehensive real estate tax on the high-amount real estate holders as a concrete method of realizing the above constitutional provisions, by promoting the price stability of real estate, thereby contributing to balanced local finance and the sound development of the national economy, and the comprehensive real estate holding tax is not subject to all the value of real estate within a short period in light of the tax rate of the comprehensive real estate holding tax, but is provided with a device to deduct the property tax imposed on the tax base of the comprehensive real estate holding tax.

It is difficult to see that the use is infringed.

(2) Tax issues on unrealized gains

The basic nature of the comprehensive real estate holding tax is to be imposed on the basis of the fact that the taxpayer owns the taxable capacity by recognizing the taxable capacity itself at the stage of possession, that is, it is difficult to view that the comprehensive real estate holding tax is a profit tax imposed on the unrealized acquisition (price increase). Even if the comprehensive real estate holding tax has the nature of profit-making tax, and it has the nature of taxation on the unrealized acquisition, the issue of whether to impose the unrealized acquisition is a matter of legislative policy and not permitted under the Constitution, taking into account the purpose of taxation, the characteristics of taxable income, and the problem of taxation technology (the Constitutional Court Decision 7 July 1994).

29. Judgment 92Hun-Ba49, etc.

(3) Whether the prohibition of double taxation violates the principle

Since the comprehensive real estate holding tax recognizes the capacity to pay taxes per se in real estate holding more than a certain value and its legislative purpose is different from the property tax items, and it differs from the transfer income tax imposed on the profit accrued during the holding period (value increase). Thus, it does not constitute double taxation in relation to the property tax and the transfer income tax.

(4) Whether the local finance right is infringed

The issue of whether the comprehensive real estate holding tax should be a national tax or local tax depends on the purpose of taxation and legislative policy of the relevant tax, and there is no inevitable reason that the comprehensive real estate holding tax should be a local tax, and the comprehensive real estate holding tax should be a local tax, and since the comprehensive real estate holding tax separately established a tax item for the portion exceeding a certain value while maintaining property tax which is a local tax, it cannot be deemed that the right of local

(5) Whether the principle of equality is violated

It is true that the Gross Real Estate Tax Act imposes the comprehensive real estate holding tax only on a person holding a high-amount real estate property and discriminates against those holding property rights, such as deposits or stocks of the same value. However, in Korea, the supply of land or housing is restricted differently from stocks, etc., and in Korea, it is necessary to deal differently because the price increase or speculative phenomenon is remarkably higher than deposits or stocks, etc. due to the imbalance in supply and demand of land and housing, and it is necessary to deal differently. ② The problem of land or housing leads to the problem of the right to live a life worthy of human dignity as goods essential for living. In light of the fact that land or housing is remarkably public nature, the above discriminatory treatment is not in violation of the principle of equality.

(6) Whether Article 119(2) of the Constitution is violated

In full view of the above various circumstances, it is difficult to view the Comprehensive Real Estate Tax Act as a prior regulation beyond the “regulation and coordination on the economy for maintaining the adequate distribution of income pursuant to Article 119(2) of the Constitution.”

B. Determination on the assertion of unconstitutionality under Article 11 of the Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act

(1) Whether the principle of no taxation without law and prohibition of comprehensive delegation is violated

Article 11 of the Comprehensive Real Estate Tax Act provides that comprehensive real estate holding tax on land located in Korea shall be imposed by dividing it into general aggregate taxation under Article 182 (1) 1 of the Local Tax Act and special aggregate taxation under Article 182 (1) 2 of the Local Tax Act. The plaintiff claims the unconstitutionality of the part related to Article 182 (1) 1 and 2 of the former Local Tax Act.

(A) Whether Article 11 of the Gross Real Estate Tax Act is unconstitutional on Article 182(1)1 of the former Local Tax Act

Article 182 (1) 1 of the former Local Tax Act provides that the land, except the land subject to a separate aggregate taxation or separate taxation among the land owned by a person liable to pay tax as of the base date of taxation, shall be subject to general aggregate taxation, and does not comprehensively delegate general aggregate taxation to the Enforcement Decree of the same Act. Thus, the argument that the above provision violates the principle of no taxation

(B) Whether Article 11 of the Gross Real Estate Tax Act is unconstitutional on Article 182(1)2 of the former Local Tax Act

1) Since it is difficult to see that the forest land preserved in its original form falls under the land annexed to a building as prescribed by the Presidential Decree among the main sentence of Article 182 (1) 2 of the former Local Tax Act, the legal provision directly related to this case is the part of "land as prescribed by the Presidential Decree, which has a considerable reason to be subject to separate taxation" in the main sentence of Article 182 (1) 2 of the former Local Tax Act (hereinafter "the legal provision of this case").

2) The purport of Article 182(1) of the former Local Tax Act, which separates property tax imposed on the land as above, is to establish the ability to taxation principle, facilitate the supply and demand of land, and facilitate the expansion of the base of land ownership by establishing a period for the healthy life of citizens, and to contribute to the stabilization of land price and the expansion of the base of land ownership by establishing a period for which taxes are imposed, and the purport of Article 182(1) of the former Local Tax Act, which sets forth a high cumulative tax rate as to the land that is not subject to separate cumulative taxation, is to prevent excessive possession of land which is a general aggregate subject matter of general aggregate taxation and to prevent small-scale possession of land from being allowed by imposing a separate

The phrase “land prescribed by the Presidential Decree, which has a considerable reason to impose aggregate taxation” under the instant legal provision, is somewhat abstract and comprehensive. However, given that land subject to separate aggregate taxation and tax system as well as different elements are mixed, it is difficult to find a common sign that can properly classify its kinds or scope. Furthermore, the issue of whether to be subject to separate aggregate taxation is necessary to flexibly and flexiblely regulate individual and detailed matters in response to changes in economic situation, change in land policy, change in related laws and regulations, etc. Therefore, it is inappropriate to regulate individual and detailed provisions in the parliamentary legislation of the National Assembly, and there is an inevitable reason not to delegate specific provisions in the Presidential Decree to the National Assembly regarding more detailed matters after establishing a somewhat comprehensive standard. In addition, in light of the above, in order to properly cope with changes in the modern society where the administrative territory expands, there is an inevitable aspect of delegation legislation, which is also closely related to changes in the public economic situation, and thus, it seems to be consistent with the legislative purpose of the instant legal provision and the principle of prohibition of delegation of comprehensive taxation to the National Assembly.

(2) Whether other substantial violations of the principle of no taxation without law and infringement of property rights

The Plaintiff also purports to the effect that the statutory provisions of this case are in violation of the principle of no taxation without law, infringe property rights, constitute double taxation, impose tax on unrealized gain, infringe on local finance, infringe on freedom of occupation, infringe on freedom of choice, violate the principle of equality, and violate Article 119(2) of the Constitution.

The argument is asserted.

In determining the unconstitutionality of a provision of the Act, the basis of whether the provision itself contains unconstitutional contents should be determined. The relevant provision of the relevant Act cannot be deemed unconstitutional solely on the ground that the Enforcement Decree or the Enforcement Rule enacted pursuant to the constitutional provision contains unconstitutional contents.

In this case, the pertinent legal provision itself does not provide for any disadvantage to the Plaintiff in relation to the relationship with the Plaintiff. It is only decided whether the enforcement decree enacted later stipulates the whole preservation of the form of a membership golf course as a general aggregate subject to general aggregate taxation or as a special aggregate subject to separate aggregate taxation. Ultimately, the effect of the Plaintiff’s violation of the principle of no taxation without representation, infringement of property rights, etc. is caused by the provisions of the Enforcement Decree of the instant case. Therefore, the argument that the instant legal provision, which is the basis for the unconstitutionality of the instant legal provision, is unconstitutional is without merit.

C. Determination on the assertion of unconstitutionality under the provision of the Enforcement Decree of this case

(1) Whether the principle of equality is violated

The principle of equality under Article 11(1) of the Constitution is the principle of tax equality to be implemented in the field of tax law. The imposition and collection of taxes must be conducted fairly and equally commensurate with the taxpayer’s ability to pay taxes, and it is not allowed to discriminate against or give preferential treatment to a specific taxpayer unfavorably without reasonable grounds (see Constitutional Court Order 98Hun-Ma55, Nov. 25, 1999; Constitutional Court Order 93Hun-Ba2, Jun. 26, 1996; Constitutional Court Order 93Hun-Ba2, Jun. 26, 1996). However, discrimination among taxpayers should be exceptionally permitted, and how to determine the contents of the tax law is recognized by the legislative. Today, the legislative legislative person may consider various perspectives for the national economy, financial policy, and social policy achievement (see Constitutional Court Order 2002Hun-Ba43, Oct. 31, 2002).

First, the provisions of the Enforcement Decree of this case treat the "forest for the original preservation of the form of a golf course" that must be preserved as it is without any artificial alteration of its form and treat it differently from the "land for the sports facility where profit is created". The "forest for the original preservation of the form of a golf course" is essentially the same as the "land for the sports facility where profit is created" in that the "forest for the golf course" is to be legally owned for the golf course business, which is to be separated from the domain or the outer area, and to prevent accidents, and to create and maintain beautiful landscape of the golf course, thereby increasing its utility by combining it with the golf course, and is essentially different from the "a simple forest connected to the golf course" that is irrelevant to the golf course business.

Furthermore, the provisions of the Enforcement Decree of this case stipulate the forest land to be preserved in its original form as a general aggregate taxation object and the forest to be preserved in its original form as a general aggregate taxation object, and the forest to be preserved in its original form as a general aggregate taxation object. ① Membership of a membership golf course is classified into a high amount of transaction with a private property, while various kinds of support, such as tax support, are being provided for a public golf course to revitalize golf as a common sports for the general public, and ② forest to be preserved in its original form as a combination with the forest to be preserved in its original form as well as the characteristics of its property are still maintained. In full view of the above, there are essential differences between the forest to be preserved in its original form and the forest to be preserved in its original form as a public golf course.

Therefore, the enforcement decree of this case cannot be viewed as violating the principle of equality.

(2) Whether freedom of occupation is infringed

It is difficult to view that only heavy taxation on the preserved forest land of the original form of a golf course does not have a decisive impact on whether it has accrued a golf course or not, and as well as other companies under the free market and economic order, whether it has accrued a profit or loss depends on the issue of reasonableness of economic choice and efficiency in corporate management. Therefore, even if the gross real estate holding tax on the preserved forest land of the original form of a golf course has a significant burden, it is a matter of economic choice to decide whether to acquire and operate a golf course even if it bears such economic burden, and the said gross real estate holding tax itself does not legally or actually prohibit the operation of the golf course, and thus, the instant provision of the Enforcement Decree of the instant case cannot be deemed as infringing on the freedom of vocational choice (see Constitutional Court Order 96HunBa64, Feb. 25, 199).

D. Sub-committee

Therefore, the plaintiff's assertion that the grounds of each disposition of this case are unconstitutional is without merit.

5. Determination of illegality in calculation of tax base

A. In a case where there exists an error in the determination of the officially assessed individual land price, the illegality itself can be asserted as an administrative disposition subject to the administrative litigation, and in an administrative litigation seeking revocation of the administrative disposition such as taxation based on this, the illegality of the previously assessed individual land price determination can be asserted as an independent legal ground (see, e.g., Supreme Court Decision 93Nu8542, Jan. 25, 1994).

B. In the case of this case, the plaintiff only asserts that the officially assessed individual land price of the original conservation forest of this case is illegal because the officially assessed individual land price of this case is significantly higher than the officially assessed land price of neighboring forests and does not present and prove any specific reason for illegality, and there is no evidence to deem that the decision of the officially assessed individual land price was illegal. Thus, this part of the plaintiff's assertion

6. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.